When You Have To Fire An Employee

By Robert Smith

Unfortunately, it doesn’t always work out and the staffer you thought to be perfect for your team winds up bringing down your practice in some significant way. It is when you recognize that you must fire the employee that the real work of managing your office truly begins. Indeed, with the increasingly litigious nature of our era, firing staffers has become a problematic process, fraught with many legal and ethical landmines. “We all know how to terminate someone,” notes Hal Ornstein, DPM, who has a private practice in Howell, N.J. “It’s not hard to say ‘You’re fired.’ The idea is to protect yourself legally, to have all your ducks in order, to protect your practice against havoc.” If you think this “havoc” can never happen to you, think again. Here are just a few statistics on employment-related lawsuits from the Employer Advisor’s Network: • More than 450 employment lawsuits are filed in the United States every day. • The average annual caseload for Equal Employment Opportunity Commission (EEOC) investigators has tripled since 1992. The organization currently has an 18-month backlog for resolution of discrimination cases. • The average case takes two years to go to trial and may end up on appeal for longer than that. • Of all cases tried, 56 percent result in verdicts for the plaintiff (employee). The average plaintiff’s verdict in employment law cases exceeds $250,000, with 15 percent of all verdicts exceeding $1 million. • Eighty percent of all employers that were sued felt they were the victims of unfair or frivolous lawsuits. Half of those employers sued spent in excess of $50,000, and one-third spent more than $100,000 defending against these claim, in addition to the cost of settlement or verdict. Medical professionals, however, are open to additional problems. “A disgruntled employee can do more damage to you and your practice than employees in other fields can do to their employers,” notes Michael Metzger, DPM, MBA, a podiatric consultant in Dallas, Texas. “They could call Medicare with a complaint, that you’re over-billing or under-billing, or they could file an OSHA complaint. They could call a disgruntled patient and make problems for you there too. You have a liability in the medical profession that you don’t have in other situations.” It’s Easy And Cheap To Lodge A Complaint The threats of lawsuits abound. After all, in most states, they are easy to lodge, regardless of claim. “There used to be a big ad slogan in New York for the lottery—‘A Dollar and a Dream,’” says Janice Roven, JD, a New York-based attorney. “My philosophy on this type of litigation is ’75 Dollars and a Dream.’ In New York, it costs $75 to start a lawsuit about anything, whether it’s discrimination based on gender or on harassment. There are so many cases out there that are frivolous.” Roven notes that it is difficult to give doctors instructions on how to avoid being sued by an ex-employee, because of the ease with which people can start cases. What they must do is learn how to minimize the damage incurred by a lawsuit. “I just read about a case involving a female secretary who sued her female boss for sexual harassment, because the boss bought her yogurt, asked her on a variety of occasions what the employee was doing for the weekend, and ‘sat close to her’ when no one else was around,” offers Roven. “The court held that the plaintiff did not have sufficient evidence of sexual harassment. But meanwhile, this person is in a lawsuit.” Dr. Metzger concurs. “Lawyers are going to jump at what they’re going to jump at. Even if you win, your legal fees will cost you thousands.” What You Should Know About Protected Classes And At-Will Employment You cannot, for example, fire an employee based on their gender, race, disability, age or national origin. These are the so-called “protected classes” covered under various acts and titles of federal and state employment laws. However, all states (with the exception of Montana) observe the rule of at-will employment, that an employee is hired at-will and that employment can be terminated at the will of either party. This means that your practice has the right to terminate your relationship with an employee at any time without cause, and your employee has the right to leave at any time.

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